Judge talks, but will MS walk?

Microsoft asks highest court to review case

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Microsoft yesterday asked the US Supreme Court to review an appeals court ruling that it illegally used its monopoly power in the market for PC operating systems to harm rivals.

The company argued in court papers that the Court of Appeals for the District of Columbia should have thrown out all of District Court Judge Jackson's findings and proposed remedies because of comments the judge made to the press while he was trying the case.

But this looks a desperate move that has little possibility of success.

"I don't think the Supreme Court is going to touch the findings of fact," said Bob Schneider, an attorney at the Chapman and Cutler law firm in Chicago. "I wouldn't give this much more than a 20 percent chance of being accepted by the Supreme Court. Probably even less."

If the high court did agree to hear the case, "it would be a slap in the face for the D.C. (appeals) court," said Emmett Stanton, an attorney at the law firm Fenwick & West LLP. That is unlikely, however, because the panel of seven appellate judges ruled unanimously in its decision.

"The Supreme Court rarely grants review of unanimous... decisions from the courts of appeal," Stanton added.

In addition to its filing with the country's highest court, Microsoft asked the Appeals Court to hold off on sending the case back to the district court level until the Supreme Court has a chance to decide on whether it will hear the case. A new trial court was expected to revisit the case as early as the end of this week; the Supreme Court would be unlikely to hear the case until its October term begins.

In its ruling on 28 June, the Appeals Court admonished Jackson for violating legal codes of conduct when speaking to reporters from the New York Times and The New Yorker magazine about the case.

At the same time, the Appeals Court largely upheld the lower court's finding that Microsoft used its monopoly power illegally to squash competitors. It said Jackson should be removed from the case and recommended it be reheard by a different judge.